The Tribute Vice Pays to Virtue: A Comment on Roberts’ Purported Marburian Move

Many have argued that the Chief Justice executed a brilliant Marburian move – which enabled conservatives to “lose the battle but win the war.” Like Steve Vladeck, I think the analogy is superficial. But I’ll note an irony that I haven’t seen expressed elsewhere. The argument goes that the Chief Justice deliberately and brilliantly set out to neuter democrats by “giving them what they wanted” today while simultaneously setting up a series of precedents a future decision(s) invigorating the lost constitution. Like Marshall before him, the Chief Justice grasped that the best time to make good precedent for you is when you are losing.

But consider what this argument actually implies about how judges work. Before yesterday, many Americans, and most law professors, would have agreed with Mike Dorf’s lament:

“When I started as a constitutional lawyer, I was about 70% legal realist. I thought that in the ideologically identifiable cases in the Supreme Court, law accounted for roughly 30% of the outcomes one saw. After Bush v. Gore, I was at 99-1. That last one percent is on the line in the ACA case.”

That is: precedent was not thought to constrain judicial rulings at the Supreme Court level. Indeed, folks who do think that law constrains must often couch their arguments instrumentally – “precedent matters because following precedent increases institutional and thus personal power in the long-term.” But note: for partisans to now argue that the Chief Justice has strategically scattered a bread crumb trail requires them to also believe that precedent will meaningfully affect the outcome of future Supreme Court cases. Or to put it another way, the Marbury-ACA thesis is largely based on a theory of Supreme Court decision-making that, until yesterday, few would confess to holding. It’s as if the Chief Justice has magically clapped his hands, and we all now believe in the tooth fairy.

What’s especially ironic is that partisans make this argument while also asserting that the Chief Justice’s motives were largely political! So, in essence, they are claiming that the Chief Justice believes he can constrain other jurists (those who care about precedent – surely, “our side”) while himself being unconstrained by force of law. He’s the ultimate cynic. Not a latter-day Marshall, but a black-robed Machiavelli.

This, I think, is a nice example of what psychologists call projection.